Federal Probation Revocation Hearings

An interesting case out of the Fourth Circuit was brought to my attention by this post by the Federal Criminal Appeals Blog entitled “Just Because It’s A Supervised Release Hearing Doesn’t Mean There Are No Rules.”

As the title suggests, federal probation revocation hearings are far less formal than a criminal trial. In fact, the rules that govern these hearings appear in only one section of the Federal Rules of Criminal Procedure: Rule 32.1. Below is an excerpt from the article.

Anthony Doswell was having a bad run of luck.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison – folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

One big way to mess up is to commit a new crime. The rub is that a person can be violated – and sent back to prison – for committing a new crime, not just for being convicted of committing a new crime.

So, it’s possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.

Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn’t show up to mental health treatment, or to meet with his supervising probation officer.

At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.

Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist’s report.

The government did not call any witnesses.

The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,

Without explanation, the district court concluded that, “notwithstanding the objection,” the drug analysis report was “sufficient to support the [heroin] violation alleged.” Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, “in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell’s supervised release].” The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.

On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.

The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn’t have to have a witness there.

Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear

Since the district court spent exactly no time balancing whether the interests of justice didn’t require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.

We don’t do many posts on revocation hearings here, but the issue is important to both the federal process and our clients. If you have any questions regarding revocation (and especially how to avoid them) please give us a call at (480) 382-9287.

The 11th Circuit, Fricosu, and the 5th Amendment

Electronic Decryption Orders

As can be read in our previous posts (here and here), a case in Colorado has caught the attention of the nation in its implications on the 5th Amendment to the United States Constitution.

This case touches on the Constitution, fraud, sex offenses, electronic freedoms, and many other incredibly important topics. Yesterday, the 11th Circuit Court of Appeals took up the topic in a separate case (US v. Doe) and disagreed with their own lower court’s mandate to supply unencrypted data for the prosecution. In Doe, the defendant was ordered to produce an unencrypted version of his hard drive(s). Doe refused to comply. From In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011:

We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED.

Back Story

In Colorado, a defendant (Fricosu) may or may not have incriminating evidence on her laptop hard drive that was seized by authorities. The government asked for, and was granted, an order forcing Fricosu to produce a decrypted copy of that hard drive. Fricosu appealed, saying that doing so violates her 5th Amendment protections against self-incrimination. The appellate court refused to rule until the case was finished in the lower court.

The order forcing Fricosu to give over potentially incriminating evidence, and other similar orders from around the country, has troubling implications on the 5th Amendment in the new, digital world.

…and even further back…

In Fricosu, the presiding judge relied heavily upon the very limited precedents from around the country. Every one of these precedents were from child pornography cases where the courts didn’t seem to mind infringing on 5th Amendment protections, so long as sex offenders were the losers.

As with all history, equal protection exists for everybody, and infringing on one (hated) groups rights will eventually spill over onto the rest of the population.

Equal Protection

It may be hard to do, and sometimes even harder to stomach, but protecting the rights of the least popular citizens of any society is vital. This effort prevents [G]overnment from “taking a mile” for every inch of leeway given to it.

Kudos to the 11th Circuit for making this decision. Let us all hope that, regardless of coexisting immunity given to defendants, the 10th Circuit will follow suit and not allow its lower courts to be so cavalier with the 5th Amendment.

Supreme Court Says “No” to GPS Tracking Without Warrant

United States v. Jones

The United States Supreme Court decided an important case last week concerning Fourth Amendment rights and police GPS tracking without warrant using devices placed on suspected criminal’s vehicles. The Obama administration pressed for a ruling which allowed law enforcement the right to use such tactics without a warrant to aid drug and terrorist investigations.

The Supreme Court, however, disagreed. The ability to use these tactics without a warrant may seem like a good idea in well-intentioned investigations against “bad guys.” However, the ever-increasing technology that pervades society today makes a such a power a very fearful potential abuse of authority.

In the constant battle against “Big Brother”, the decision in United States v. Jones is a big win for privacy rights of United States citizens.

Analysis

An excerpt from the SCOTUS Blog analysis:

Opinion recap: Tight limit on police GPS use
by Lyle Denniston

“Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

“The Court flatly rejected the government’s argument that it was simply not a search, in the constitutional sense, to physically — and secretly — attach a small GPS tracker on the underside of the car used by a man, Antoine Jones, who was a principal target of an investigation into a drug-running operation in Washington, D.C., and its suburbs. The device was installed without a warrant (one had been issued, but it ran out before it was put on the Jeep Cherokee and, in any event, it was limited to Washington, and the device was installed in Maryland). And, once installed (and serviced when the batteries ran down), it remained on the Jeep around the clock for 28 days. The 2,000-page log of where Jones had driven the Jeep was used to convict him of a drug-trafficking conspiracy, leading to a life prison sentence and an order to forfeit $1 million in illegal drug proceeds. One place where the device showed Jones had visited was a “stash house” where $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of crack cocaine turned up.”

 

Appeals and Habeas Corpus Petitions

Types of Judicial Relief

When all direct appeals have been exhausted by a defendant (inmate), many times hope feels lost. This is a normal feeling, but not true. After direct appeals are finished with no relief, there are three separate options for relief. All three are Writs, and each has a specific use.

These are:

  • A Writ of Habeas Corpus (28 U.S.C. §2255)
  • A Writ of Habeas Corpus (28 U.S.C. §2241)
  • A Writ of Coram Nobis (28 U.S.C. §1651)

Contact Us for a Free Consultation

PCR Consultants is a different kind of consulting agency. PCR stands for Post Conviction Relief and we focus on changing outcomes when contending with the federal justice system, Bureau of Prisons, and United States Probation.

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses. Read on for more information about the use of habeas writs.

Uses of Habeas Corpus Motions

The two Writs of Habeas Corpus are used by a criminal defendant who is currently incarcerated. Depending on the situation, each can be used to grant relief to the inmate.

A §2255 motion (or petition) is used to challenge the underlying sentence and/or conviction in ways that are unavailable on direct appeal. The vast majority of these motions cite “Ineffective Assistance of Counsel” as a basis for challenge. If a lawyer clearly did a terrible job, this form of relief may be what an inmate needs to reverse his conviction. Strong standards apply to this type of appeal, but relief is not at all impossible with the right help.

A §2241 motion (or petition) is used to challenge conditions or legality of confinement. If unconstitutional treatment is given to an inmate, this type of relief is best used. This type of relief is of particular importance for inmates who are held after their sentence has expired, if they are being held illegally, or if execution of a sentence is being improperly managed by the Bureau of Prisons.

Writ of Coram Nobis

This is a special writ that is based in Common Law. Used only after a sentence of imprisonment is finished, this tool is used to overturn a conviction long after the fact if circumstances have changed in the legal landscape. If a form of prosecution used to convict is deemed illegal or unconstitutional, this writ can be used effectively to remove a criminal conviction from an ex-con’s record.